First Exemption for Menu Labeling Requirements Filed

The Patient Protection and Affordable Care Act (PPACA) (P.L. 111-148), implemented a variety of measures including strict menu labeling requirements for retail food establishments and vending machine operators. Under the newly created FDC Act §403(q)(5)(H), commonly referred to as the Federal Menu Labeling Requirement, the calorie content of standard menu items and the suggested daily calorie intake, as specified by the Department of Health and Human Services (HHS), must be placed directly on menus and menu boards of restaurants, retail food establishments and vending machine operations that are part of chains with 20 or more locations. Other nutritional information must also be made easily available to customers.

In their recently filed citizen petition the city of Philadelphia is seeking an exemption from the new menu labeling requirements, arguing that their regulations are largely consistent with the federal requirements, and that their regulations actually require more detailed information to be provided directly on menus. For instance, the Federal Menu Labeling Requirement applies to all restaurants and retail food establishments with 20 or more locations, whereas the Philadelphia ordinance applies to restaurants and retail food establishments with 15 or more locations. The federal law requires menus to contain the total number of calories per menu item and a succinct statement concerning the suggested daily caloric intake to enable the public to understand the item in the context of a total daily diet. The Philadelphia ordinance, in addition to the calorie declaration requires the menu to disclose the total amounts of calories, sodium, saturated fat, trans fat, carbohydrates, as well as a statement about daily caloric needs.

In the petition, the city of Philadelphia states that among counties containing one of the 10 largest U.S. cities, Philadelphia County has the highest rate of death from kidney failure and third highest from stroke, creating a greater need for labels that include more than calories. Philadelphia also claims to have the highest overall mortality and cancer mortality and the third highest rate of heart disease mortality among the largest 10 cities in the United States. Furthermore, the city argues that the Federal Menu Labeling Requirement does not adqueately address the public health crisis caused by increased sodium consumption, which is indicated by the fact that 35% of adults in Philadlephia, and half of all African-Americans, have hypertension, while typical restaurant food contains 2,300 to 4,600 milligrams of sodium.

Philadelphia has found that with its menu labeling requirements, companies and restaurants have reduced portion sizes or calorie content in response to the growing awareness of nutrition information. The ordinance, they claim, benefits millions of Philadelphia residents without significantly affecting the production or distribution of chain restaurant food, and the ordiance is consistent with federal law except to the extent it has differences with the Federal Menu Labeling Requirement from which it seeks exemption.